JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

The Court strikes down a California law that prohibits the sale or rental of "violent video games" to minors. The statute defined violent games in a way that "mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York." But sex and violence are different: "obscenity is not protected expression" under the First and Fourteenth Amendments. California was trying "to create a wholly new category of content-based regulation that is permissible only for speech directed at children." "That is unprecedented and mistaken," the Court says today.

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

I was reading that out loud here at Meadhouse, and somebody said: "The Supreme Court needs spoiler alerts!"

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187–189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).

That Homer passage still grosses people out. Even after all the horrible movies and video games they've witnessed.

Alito, by the way, does not dissent. (Remember he was the lone dissenter in the Phelps case, showing the most empathy for sensitive people brutalized by ugly expression.) He thinks that "the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie," and he'd prefer to put off the more difficult free speech questions and "hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires." That would leave room for legislatures to craft better laws designed to protect minors.

ADDED: The 2 dissenting opinions come from Justices Thomas and Breyer. Thomas relies on originalism: "the founding generation" didn't think First Amendment free speech included a right "to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians." I haven't had the chance to read the entire opinion, but I can see that it contains some detailed discussion about the history of ideas about children. I'll leave that for another post.

Justice Breyer's dissenting opinion reject the facial challenge to the law. He says the "case is ultimately less about censorship than it is about education."

Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to mak­ing our system of government work.... Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments.

I wonder how our species and it's cultures would have developed if we historically treated violence as obscene rather than sex. Could it have? Both are basic and necessary for survival, but we chose sex to be afraid of.

Video games are not a part of real life. They are a simple fantasy of attacking an enemy, but they are not manipulating players into a socially approved action. Yet they are very close to Fascist Government's approval by propaganda of murdering one ethnic group righteously by another group. It is the Nazi issue all over again.

The precise danger posed by the [INSERT LAW HERE]: that the ideas expressed by [INSERT THE PROHIBITED ACTIVITY, SPEECH, OR OBJECT] and not its objective effects, may be the real reason for governmental proscription."

This law wasn't a ban on violent video games, it was just a ban on their dissemination to minors.

How is this a free speech issue? We ban things for minors already.

And how can Scalia equate a game that requires the participant to actually actively saw off a human being's head, and then rewards them with a high-resolution realistic video of a blood-spurting neck-stump, to some books with not-terribly-detailed descriptions of violence against monsters and witches in antiquated language?

We're producing a generation of people so jaded, immune to violence, and incapable of revulsion that they'll make Ed Gein look like Mr. Rogers.

Much better to wipe out virtual opponents controlled by actual people somewhere out there in the world, be they soldiers or spacecraft. AI zombies, after all, feel about as much emotion as the "real" sort (lol).

One of the highest, and most rare, forms of praise in an online game is seeing your opponent type in the all-chat, "WILL SOMEONE KILL THAT FUCKING GUY???"

Online gaming is generally not a child-friendly zone, either in content or the behavior of it's players. As a parent, I have no problem with the sticker system but as my kids are too young yet, I've not had to worry about whether or not stores actually abide by them. I can see the majority's problem with the CA law though.

Nothing should be X-rated then, right? (Finally, the publisher can stop putting a plain brown wrapper over my monthly copies of "Beastiality Illustrated" and "Goat Fancy." I always feared the postman might assume there was something really offensive under that wrapper, like Vanity Fair.)

Give me a compelling reason to show this movie to kindergarteners and it's educational benefit thereof. While you're at it, explain the educational benefit of having them play Bad Company or Gears Of War.

Reading the quote from Breyer you would think it was Senator Breyer, not Justice Breyer. I guess that it where we are now with respect to judicial review of the constitutionality of a statute - and its all the courts, not just the U.S.Supreme Court. But its hard to see how the courts are not legislating when they base a constitutioal review on whether a statute will have a salutory effect - that seems to be what he is saying his job is.

You're right, ScottM. We shouldn't show this to kindergartners during school hours.

But if those 5-year-olds want to stop off at the local bodega and pick up a dvd of Faces of Death, along with a copy of Corprophilia Digest and a fifth of Jack, then hey, we live in a free society, right?

But if those 5-year-olds want to stop off at the local bodega and pick up a dvd of Faces of Death, along with a copy of Corprophilia Digest and a fifth of Jack, then hey, we live in a free society, right?

I'm fine with that. Along with wondering very much why a parent would let a 5-year-old "stop off" anywhere on their own in any way, shape, or form.

DBQ, how would they have affected you? By requiring you to show your ID when purchasing them?

It doesn't affect me, however if I wanted my child or grandchild to be able to play Grand Theft Auto, I would simply buy the game and not worry about what other people do or don't do. If I were a minor, my parents would probably either have a discussion about the inappropriate character of the game or just buy it for me.

Because I still have to show my ID to purchase the quarterly journal of the Man-Sheep Love Association, "Wild and Wooly." Would you remove those draconian rules too?

Sure. You should be free to buy whatever publication you want. It is nobody's business what you read or what games you play. However.....if you are molesting innocent sheep...perhaps some action might be considered.

Why can minors be prevented from going to a movie that is rated R or PG-13? Aren't the ratings based, in part, on depiction of violence?

I believe the ban is on minors unacompanied by an adult. I took my daughter at the age of 11 to see The Color Purple and let her read the book as well. I felt that since we were seeing it together and discussing it that it was MY choice to see a movie full of sex and violence.

I'm not a fan of violence for violence sake in entertainment, especially for young children. However, it shouldn't be my decision to tell others what to do.

the libertarians make a big show of talking about freedom, but, in the end, it's more their self-indulgence that concerns them.

Careful the size of the brush you're painting with.

They say some good things about getting the government out of our lives, I grant you, but I've also noticed a considerable tendency among many, if not most, libertarians to take the attitude, "If it doesn't affect me right here and now, why should I be inconvenienced?"

If violence is an issue, then the first 20 minutes and the last 20 minutes of Saving Private Ryan need an X rating, and so does the scourging scene in The Passion of The Christ. Children are the ones who most need to know about that side of life among the descendants of Adam.

Re: Movies- My understanding is that the movie rating system is completely voluntary. I don't think that it's a law, per se. Or, at least, if it is a law that they have to restrict access to movies with certain ratings, you are perfectly allowed to release a movie without any rating if you choose (you just won't be able to sell it to any mainstream movie theater, as they all play by the MPAA's ratings rules. In other words, it's completely liberatarian/free market capitalism). I'm not clear on how that compares to the CA rules on violent video games, though.

"Our analysis meanwhile demonstrates that major studios and movies with central cast members receive less restrictive MPAA ratings for the same levels of content. This disparity therefore places a burden on independent distributors and other peripheral players: To enter the more attractive categories, they must create movies with less intrinsic market appeal. The U.S. ratings system, as a result, erects barriers that impede independents and lower status participants from offering appealing products in the most profitable niches. Our results therefore point most directly to a potential shortcoming of industry self-regulation: By favoring incumbents and high status actors in their evaluations, these classification systems can serve as stratifying mechanisms within an industry"

See, this is where arguments with libertarians generally lead: To the notion that road signs that tell us there's a sharp curve ahead, and the yellow dashes down the middle of the road, are an unnecessary infringement on liberty.

It's as if logical consistency is the be-all and end-all, even if it leads you to the obvious absurdity of allowing distribution of pornography and liquor to 5-year-olds.

I'm old enough to remember a time when young children could go off to the local store alone; they could walk home from school and didn't have to all be picked up and chauffeured about. It doesn't seem so implausible to me, that a child could find themselves in a store alone. Of course, in those days, we had laws about dissemination of filth to minors, and we didn't have a generation or two of people raised on murder-games and torture-porn.

Coarsening of the culture has real effects, that go beyond having to show your ID to purchase Disemboweler III.

"the movie ratings are a voluntary agreement between theaters and the MPAA."

The MPAA is controlled by the major studios, a collusion between them and the movie theaters. It's used to keep out independent films, although this has failed over time as movies move out of theaters altogether.

So no, not a governmental edict, but its effect is the same. Across the country, movie ratings are controlled by a small secretive group that will not release their criteria for evaluation.

Movies they don't like are killed off by giving them an X rating when similar content by big name actors and studios are R rated.

It's as if logical consistency is the be-all and end-all, even if it leads you to the obvious absurdity of allowing distribution of pornography and liquor to 5-year-olds.

Your scenario painted a picture of a 5-year-old "stopping off" and purchasing this stuff on their own. Now you seem to be walking that back because 5-year-olds could walk around unabated a-way-back-when.

My point was that a overbearing federal law (or in this case a state law) isn't necessary because there's no reason why a 5-year-old should be unaccompanied in any case.

I would also note that citing the original Brothers Grimm Fairy Tales is a bit bizarre. I might read those to my kids, but I would be the only one in my social circle to do so. Most parents these days find those stories too gruesome.

Freeman, I think that's the argument being made up-thread by the usually level-headed ScottM and DBQ: It's up to the parents, they say.

I can see their point, in an idealized libertarian way; but I have to live in the same society as the horrible little heathens that bad parents will produce. I think allowing young children to participate in murder-games (or to view pornography, or drink cheap blended whiskey) borders on child abuse.

Do those parents let their kids watch Spongebob? Do they let their kids keep score in little league games? Do they ensure their kids are armored head to toe to skate? Do they expect their precious little ones to do anything other than ballet when they grow up?

I might read those to my kids, but I would be the only one in my social circle to do so. Most parents these days find those stories too gruesome.

And that is their perogative. However, they have no right to prevent you or I from doing so. Or bowlderizing Huck Finn because they think we are too delicate and might melt.

"The California law would have prohibited the sale or rental of violent games to anyone under 18. Retailers who violated the act would have been fined up to $1,000 for each infraction."

I'm not clear if the ban would also extend to parents providing access to the banned games> However, since the State will go after you for providing access to other banned substances to underage children (alcohol) and even take your children away from you for giving them names that are considered inappropriate, the scenario of criminalizing the parents isn't too far fetched. (Im not advocating that we allow parents to give booze to their children)

The government keeps intruding into our lives, what we eat, how we toilet, how we raise our children, political indoctrination of the children in public schools.

While I'm not a fan of violent video games, this take over of parenting (among other things) is just a slippery slope where the Government will soon be raising our children for us because we are not adhering to THEIR rules.

We're producing a generation of people so jaded, immune to violence, and incapable of revulsion that they'll make Ed Gein look like Mr. Rogers.

Oh please, clutch your pearls harder. If that were true, we should be seeing an epidemic of grisly violent crimes, which we aren't.

Here's a good solution for parents who don't want their kids to play these games: don't buy them for your kids, and don't let your kids play them.

Oh no! I suggested that being a parent might entail actual work! It might mean having to say "no" and being called a big meanie by a pre-teen! Surely preventing that horror is worth trashing the Bill of Rights, isn't it?

but I have to live in the same society as the horrible little heathens that bad parents will produce

Do you also favor a system in which and vendor that carries candy or other sweets is barred from selling fat kids snacks? After all, society is going to have to bear the brunt of the horrible little gluttons' health problems.

ScottM: It's not impossible for a young child to find themselves in a store unattended.

It's certainly rare to see unattended children; now that society has been so coarsened that we're to expect them to be abducted, raped, and murdered if we take our eyes off of them for a minute. I wonder why things have changed so much; I wonder if it has anything to do with people who play murder-games and watch Saw for entertainment.

But apparently your attitude is: If they are unfortunate enough to find themselves in a store alone, then all bets are off. Sell them whatever they can afford. What's that, junior? You want a hit of tar-heroine? Oh, you incorrigible little scamp, here you go, it's half-price.

I wonder if it has anything to do with people who play murder-games and watch Saw for entertainment.

You can wonder, but if you make the claim, you'd most likely be wrong. The fear is from constant inundation of images of kidnapped/killed kids on the news and a cultural acceptance that those things are everywhere. It has ZERO to do with video games and violent movies. We assume that since we hear nothing but bad news every day on TV, it must be everywhere and that it's much worse now than it was when we were kids.

What interested me about this post was the way Ann (perhaps unintentionally) highlighted the odd-ball translations of the classics that Scalia used. For Homer he cites a 1909 edition of an earlier translation (Lang/Butcher). I wonder if anyone has read that high Victorian translation in decades. In the 60's, the two versions most commonly used in the US were both published -- Robert Fitzgerald's (1961) and Richmond Lattimore's (1965). In the '90s Robert Fagles published a new translation which seems to have become the most commonly used (at least in my kids's school). All three are terrific, each in their different way.

Same with Dante. Scalia cites the Mandelbaum translation. If he were going with 19th century trnaslators as he did for Homer, he might have picked the Longfellow version, of perhaps CE Norton's. Or if he just wanted one for the general reader, perhaps the one by Dorothy Sayers that came out when he was still in school and might have first encountered it. But he went for Mandelbaum's 80s version. That's at least a more modern one, and still frequently used today. The Hollander translation, with its detailed notes, that was published since 2000 seems to be the choice for many today.

Scalia's choices of translations are even more curious when put side by side. He used an old version of Homer, but one that was available during his school years; and a newer version of Dante, published long after he had become a judge.

Perhaps that's just what was on hs shelf, or what the law clerk who dug up the citations found on a quick look. Still, it's curious.

It is just one step from criminalizing the sale of banned products directly to children, or to be more accurate young adults (at the age of 17), and criminalizing providing access to the banned products by the adult purchasing and giving the product to the minor.

I'll be hopelessly derivative here and say I'm torn--proponents of both sides of the argument make good points. But Sturt wins the thread for the HS curriculum comment--with Robert's reply disturbingly all too close to the mark..

And Freeman's comment that she finds "most parents" she knows think the Brothers Grimm tales too un-PC "gruesome" perhaps the most disturbing thought of all..

but I've also noticed a considerable tendency among many, if not most, libertarians to take the attitude, "If it doesn't affect me right here and now, why should I be inconvenienced?"

Most, if not all, human endeavor can be mapped along a bell curve.

Not really an answer.

traditionalguy said...

If violence is an issue, then the first 20 minutes and the last 20 minutes of Saving Private Ryan need an X rating, and so does the scourging scene in The Passion of The Christ. Children are the ones who most need to know about that side of life among the descendants of Adam.

Combat foot age from Omaha Beach and reading the Bible will fill the same need.

Sofa, so the concern is making sure that orphans and abandoned children have access to violent video games without adult supervision? I am not sure that I believe that to be a First Amendment concern.

I believe you. Not to be mean, but you seem to have a blind spot on issues that are convenient to you as a parent.

But the fact of the matter is that this is quite clearly a free speech restriction, which means that there must be a compelling state interest at stake here. Convenience of parents is not a compelling state interest.

The other problem with a law such as the one in California is the definition of "violent" video game.

I'm sure we can all agree on some games being violent and graphic and inappropriate for small children.

However, that definition can also be extended to games that are not really violent, yet they would get banned as well. The over reaching pearl clutching (lol nice term) nannies would extend the banning.

An innocuous cartoon like game such as World of Warcraft has a teen rating because there is violence....yea we kill zombies and punt gnomes. Or there may be depictions of alcohol. I have no problem with the teen rating. I don't think young children should be playing these games anyway. I don't want them to be on line with me at least. However, on this slippery slope there could be banning of something as innocuous as that.

They would probably have banned Who Framed Roger Rabbit as well. After all, Jessica Rabbit was pretty sexy. Totally inappropriate for children, doncha know.

Sometimes I think the so called liberals are worse than puritans as repressive prudes.

The Supreme Court is not taking away your ability as a parent to say "no." They are only taking away your ability to enforce your parental rules for your children by confiscationg their wealth and locking them up in a cage. But, if you love liberty, you wouldn't want that power in the first place, would you?

Bring a case. The 2nd Amendment was only just acknowledged to be an individual right.

I'd guess that the state could make an argument that the ultrahazardous nature of guns presents a compelling public safety interest in restricting their sales to adults, but your question is perhaps not as rhetorical as you might think.

We put all sorts of free speech restrictions on minors. Try saying whatever or wearing whatever you want in a government school.

Irrelveant. They were not buying video games "in a school." I mean, really, that is the relevant part of your argument, isn't it? It wouldn't make any sense at all without "in a school." And yes, minors have reduced rights in a school. Reduced, but not absent.

This law would have gone further, applying in all circumstances, and would have been specifically not viewpoint-neutral.

I would like to see a citation of where this law granted that power.

The California law in question? Not much of a law if not backed up by fines and imprisonment, is it?

First of all buying a gun is not the same level of 'danger danger Will Robbins' as renting a video game.

However, since guns ARE banned for sale to minors, if I as a parent bought a gun and decided to give it to my 12 year old child....how does that play out in the scenario.

Since sale of alcohol and tobacco and probably soon Baby Ruth Bars are banned to minors, what would be the consequences to me of providing that stuff to a minor? (Not that I would the first two....however....a candy bar once in a while isn't going to send my kid to Hell or hopefully me not to jail.)

The law does not ban "dissemination of speech based on content". We're talking about a blasted video game, not Catcher In The Rye. It's not speech.

So is speech something we add to the imperial judiciary "know it when I see it" list?

It's a work of creative and artistic production, right? It's intended to be seen or heard by an audience, right? Don't they tell a story? Don't they craft a visual representation? Of course it is speech. Even schlock is protected by the first amendment.

I just think the goal of raising kids who appreciate and understand their parents' guidelines when it comes to buying/playing "violent" video games is much more important than the goal of keeping kids from buying/playing these games.

Clarence Thomas' dissent is rather absurd. He takes the 'original intent' argument to an extreme.He seems to be saying that minors have no right to free speech without their parent's written consent. The footnote on page 9 by Scalia is pretty good on this matter.

A tad OT, but time is a major factor as well. I don't mind my kids (the oldest in the house is 7) playing a game or two, but the length of time doing it is as carefully managed as is the content of what she's playing. If she wants to play her DS or on her computer, her room and the family have to be clean first. Then I set a 1 hour alarm and, at the end, she's done.

My brother, on the other hand, mentioned to me recently that he's trying to keep his son to three hours a day. Think about that for a second...

Should we interpret this decision as meaning that minors cannot be estopped from any activity available to those of legal age? Purchasing alcohol? Acquiring a drivers licence? Entering a strip club? Voting? A few 12 year old on the registers would certainly help the Democrats chances.

"Graphic violence in the media. Does it glamorize violence? Sure. Does it desensitize us to violence? Of course. Does it help us to tolerate violence? You bet. Does it stunt our empathy for our fellow beings? Heck yes. Does it cause violence? ... Well, that's hard to prove. The trick is to ask the right question."

"I wonder how our species and it's cultures would have developed if we historically treated violence as obscene rather than sex. Could it have? Both are basic and necessary for survival, but we chose sex to be afraid of."

'Afraid of' or to revere and/or fetishize? (Gee, I hope that's an appropriate use of fetishize.)

Should we interpret this decision as meaning that minors cannot be estopped from any activity available to those of legal age? Purchasing alcohol? Acquiring a drivers licence? Entering a strip club? Voting? A few 12 year old on the registers would certainly help the Democrats chances.

As for everyone getting the vapors over people not reading the original Grimm fairy tales, those weren't even in vogue when I was a kid, and I'm thirty-one. We were one of the only houses with a book of the originals. The ones most everyone reads are sanitized.

Should we interpret this decision as meaning that minors cannot be estopped from any activity available to those of legal age? Purchasing alcohol? Acquiring a drivers licence? Entering a strip club? Voting? A few 12 year old on the registers would certainly help the Democrats chances.

Obviously not, for two reasons:

(1) The activities do not implicate Constitutional rights subsequently incorporated to the states, and are thus subject only to rational basis scrutiny, or

(2) The activitis *do* implicate Constitutional rights but for obvious reasons of public safety a compelling state interest exists to justify the circumscription.

A better question to ask those against this ruling is just what Constitutional rights you think a minor should not have? Since the First is out, what about the Fourth? Should cops be allowed to search minors at any time for any reason? What about the Fifth? The Eighth?

Also, bear in mind that the really important thing about this case is that it is as much about the speaker's rights as the hearer's. Forbidding the sale of games to minors affects the maker of the game at least as much as the minor. And, those people have rights too, as much as that might annoy parents.

Don't make the mistake of thinking that I think that this is a good and necessary law. I'm not arguing that. I'm arguing in favor of allowing states to make their own determinations of what minors can and cannot buy.

The last thing I want to see is the creation of a new huge bureaucracy to evaluate the thousands of games that are produced, so it can decide which ones it wants to stigmatize as violent. I think handing government that job does require a more compelling argument of necessity than I've heard, because it would be expensive and time-consuming as well as stupid, especially in California.

"Next, the case of Virtua Tennis. Why are the players always hitting the ball? Can't they reason with it?"

A better question to ask those against this ruling is just what Constitutional rights you think a minor should not have? Since the First is out, what about the Fourth? Should cops be allowed to search minors at any time for any reason? What about the Fifth? The Eighth?

That's a stretch. Minors already can't have cigarettes, alcohol, guns, rolling papers, and porn. They can't participate in gambling or enlist in the military without permission. And yet the Constitution has not come crashing down around them.

I was dumbfounded when I heard the news on the radio. I couldn't imagine how a 7-2 ruling could come out of such a case. I couldn't figure out how the Constitution could be spun to be made relevant to such a case.

It never occurred me to think of it as a Free Speech case. "It's expression, so it's speech per the First Amendment." Hell, everything is expression. Playing "Glenn Reynolds vs. the Zombie Apocalypse" is expression. Banning "Glenn Reynolds vs. the Zombie Apocalypse" is expression. Killing real zombies is expression. Drinking zombies is expression.

Weapons and video games and mixed drinks are not forms of verbalization. What in the hell makes video games a type of speech?

I have just read Thomas' dissent (ruling here). He puts a lot of effort in detailing the long history of legal restrictions placed exclusively on children - more effort than he should have.

He should have limited himself to laws directly relevant to First Amendment liberties and upheld by the courts. One item touches on the right to peaceable assembly: "In the Massachusetts Colony, forexample, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent." Did similar laws persist after the Bill of Rights was ratified? If so, did anyone ever challenge them?

What about laws restricting the press from selling its wares to minors? It seems to be that's the likeliest place to look for precedent.

Video games are no different than books, movies, television, or paintings. They are an art form, whatever one's personal feelings about that are. In fact, there is quite a lot of art that goes into making one that cut across several disciplines outside the purely visual.

I did not realize how bad Grimm's Fairy Tales were until I got the free version on the Kindle and tried to read one of them to my child without screening it first. Neither one of us were very happy once it was over. She has seen worse things on TV but somehow those children's stories stick with a person.

BTW, does Breyer ever talk about the law or the Constitution at all? We need to educate, blah, blah, make decisions for children, blah, blah, informed citizens. He sounds like a community organizer rather than a judge.

Normally Thomas and I are on the same page but I think he got it wrong here. At least he apparently tried to base his analysis on original intent. Even when he is wrong he is about the only Justice who takes his responsibility seriously and is humble enough to not go outside the box justices are supposed to stay within.

I wouldn't give a fig for what Breyer thinks is important. It is not his place to have such an opinion. All that matters is what the law says and what the people who wrote it intended.

If a law like this was proposed about the movie industry, it would KILL the movie industry dead. $1,000 per violation? No store would carry a game rated higher than "T", which screws over adults who want this stuff. Just like a theater chain wouldn't touch an "R" movie ever if they got fined $1,000 every time a kid gets into an "R" rated movie underage (which occurs with far more frequency than they are able to buy mature games).

Don't worry --- people said the same things about rock music back in the 1950's. Things don't change much over time.

"We're producing a generation of people so jaded, immune to violence, and incapable of revulsion that they'll make Ed Gein look like Mr. Rogers."

A retired US Army Colonel, David Grossman, made that very same argument about violent video games back in the late 1990's, in his book On Killing (and elsewhere); he claimed that we were creating a generation of "super-predators".

The problem is that rates of violent crime (including murder) were already in decline and then dropped precipitously right around 2000.

Fantasy violence is not the same as real violence; it doesn't have the same impact on adults or children. (See the excellent Killing Monsters: Why Children Need Fantasy, Super Heroes, and Make-Believe Violence by Gerard Jones for the other side of the argument.)

You're missing the point, I think. The rights trampled by the California law weren't those of the child, but those of the people who produce and sell the games.

Child-protection laws forbid children from smoking and drinking and working long hours in a coal mine and all manner of other things -- regardless of whether or not the parent approves of the activity or not. That is because those activities are alleged to be harmful to children.

The California ban on sales of games to minors did not forbid children from playing video games or parents from allowing it. Under the law parents could buy "Grand Theft Auto IV" and let their five-year old play it unsupervised. By allowing that, the California legislature conceded that the games were not inherently harmful to children the way booze and porn are alleged to be.

So the law wasn't about protecting children; it was about making parents' lives easier by making it harder for children to access works that many parents disapprove of. But you can't restrict sales of an artwork just to make things convenient for a subset of the electorate -- no matter how vocal they may be. For example, many parents would disapprove of their children reading Chris Hitchens' latest anti-Christian screed, but the government cannot use that fact to justify a ban on sales of the book to minors.

The blinding of Polyphemus at the hands of Odysseus still grosses people out because it involves an injury to the eye. Freudians claim that this is because blinding is symbolic of castration. I'm not so sure that this is the case, but such violence is perceived as uniquely horrible, to the point that it's rarely used in even the most hardcore of horror films.

I wonder how our species and it's cultures would have developed if we historically treated violence as obscene rather than sex. Could it have? Both are basic and necessary for survival, but we chose sex to be afraid of.

Two points:

1. Obscenity law isn't about being "afraid" of sex; but protecting it (and thus us) from corruption. It's similar to the reason we have laws protecting the purity of food.

Yes, extreme images of violence may well be corrupting of us as well--hence the motive for the original law. But there is this difference: sex is actually a positive good, in a way that we wouldn't say violence is. We can live without the latter; we cannot without the former.

2. Taking your "afraid of" in a somewhat different sense, it's quite valid to be "afraid" of the power of sex; because of point one: sex is so important to us as human beings.

Not to deny the horrors of violence--but quite a lot of human suffering arises from the misuse of sex. And an awful lot of people will never do anything violent, who nonetheless will misuse their sexuality.

Western culture is founded on biblical values: we are made in the image and likeness of God. Humans are never more like God than when a man and a woman engage in the marital act: because at the moment, they are "one flesh" and they are capable of coming closest to doing what only God can do: creating something ex nihilo.

Obscenity laws aren't because sex is bad, but because it's supremely good and deserves protection.

it was about making parents' lives easier by making it harder for children to access works that many parents disapprove of. But you can't restrict sales of an artwork just to make things convenient for a subset of the electorate

I would be careful about it. Other cultures have packaged kids comic books, video games, movies, school plays to show the kids that violence is GOOD and and solves many things when you are talking about shooting or chopping up, blowing up - running dog counter-revolutionaries, heretics to Islam, Israelis, Gypsies.

The 1st Amendment does not trump public safety or other parts of the Constitution."Flash mob! The video game that shows you how to assemble a mob to loot a store" does not sound like a good idea. Nor a child's video game where you and your friends "Hunt the Nigger", "Rape dey Bitches and Ho's", or a game whose score is "How many Whiteys you beat or cut up in the Park".

WE know indoctrinated childen have little problem with violence in being snitches for the state against parents, bayoneting prisoners, becoming African limb-chopping child soldiers.

The argument the 1st Amendment stalwarts make is that the videos are not a DELIBERATE, organized attempt to encourage children to be violent adults and/or eager supporters of lethal measures directed at enemies of the State.

Video games are no different than books, movies, television, or paintings.

Obviously they are different from those other things, as shown by the fact that they have different names. I suggest you try telling your child that vide games and books are no different, so hey, why not put down the Wii and read a book?

What you perhaps intended to say is that the content of video games is no different from that in books, movies, television, or paintings. But that is patently untrue.

Anyone who wants to argue that violent videogames will lead to a wave of desensitized violent children need to answer a simple question first:

Why haven't they?

First-person shooters are twenty years old. "Grand Theft Auto" and "Postal" are fifteen years old. Yet the teenagers of today are less violent and less sexually active than their parents and grandparents were. In fact, they're pretty much the best-behaved generation of children since we started keeping accurate statistics.

At this point, you need to do a hell of a lot better than constructing a hypothetical scenario in which fake violence could maybe possibly cause real violence. You need to explain why no such phenomenon has appeared yet.

For example, many parents would disapprove of their children reading Chris Hitchens' latest anti-Christian screed, but the government cannot use that fact to justify a ban on sales of the book to minors.

They limit the hours they can work in any job to 18 hours per week during the school year.

Freeman, you're still missing the point.

The distinction is between whether (a) parents may choose to allow their children to engage in the activity in question, or (b) the activity is considered inherently harmful for kids and thus parents are legally forbidden from allowing it.

Your examples fall into (b). The video game ban falls into (a). CA 1179 should have been called the Lazy Parent Personal Convenience Act of 2005. :)

Again, most of those restrictions do not implicate fundamental Constitutional rights expressly written into the Bill of Rights. That puts them in a separate category.

The difference with pornography it is has been held that "pure" pornography (as distinct from erotica with artistic merit) is not "speech" as contemplated by the First Amendment. Therefore, the state could theoretically restrict it for anybody, minor or not. On the other hand, a law that banned sellers from selling minors erotica would be unconstitutional as well.

Speaking as probably the only former employee of a game retailer heree --- few things pissed off parents MORE than me refusing to sell their kids violent games. I got called a lot of names by moms for not selling their kids GTA III or Vice City.

When you consider that you can fly through the sceen in multiple directions and view from top, bottom, left right. 360 degree scrolling. Zoom in or out and still maintain all correct perspective.... etc....it is amazing.

In addition the classical music accompanying many 'zones' includes instruments that most children will never hear outside of a video game. Cello, oboe, french horn, bassoon.

The comment about 18 hours was directed at the argument that violent games aren't harmful and thus the state has no compelling reason to regulate them. I defy someone to show me that a fifteen year old working 20 hours rather than 18 is harmed.

And if you're going to argue that pure pornography is a separate category, one could make an argument that violent games, by virtue of not only being violent but allowing the consumer to participate in and direct the violence, are also a special category.

The comment about 18 hours was directed at the argument that violent games aren't harmful and thus the state has no compelling reason to regulate them. I defy someone to show me that a fifteen year old working 20 hours rather than 18 is harmed.

A bad law isn't a justification for more bad laws. Would you be as gung-ho if they proposed criminal penalties for movie theaters that have kids getting into R-rated movies? Happens more often than underage kids getting M games.

And if you're going to argue that pure pornography is a separate category, one could make an argument that violent games, by virtue of not only being violent but allowing the consumer to participate in and direct the violence, are also a special category.

What qualifies as a "violent" game? Sounds awfully nebulous as a term. Portal 2 is an amazing puzzle game with an incredible sense of humor --- but also has an AI that is quite explicit in its goal to kill you.

You don't have a right to seek employment?There aren't labor laws that regulate the terms of my employment?

No, to the contrary there are a myriad such laws, all of which are apparently constitutional because there's nothing in the Bill of Rights that says, "Congress shall make no law abridging the freedom to contract."

And while I am sympathetic to the argument that the pornography exception is a case of special pleading (not one of my own invention, incidentally), it at least restricts that special case to content with nothing substantive to say. It is not defined by the *presence* of something objectionable, but by the *absence* of anything that is not.

"So a political short film with nothing more than images and a music soundtrack isn't protected?"

I believe that falls under "press." So are books.

"Have you seen a video game in the last 15 years? There's plenty of verbal speech."

It's the non-speech parts of video games attracting the legislation.

Even though nobody argues against the definition of "press" as we know it today (mass media in all its forms) per the First Amendment, it really should have been enumerated in a constitutional amendment, to eliminate one excuse for planting phantom umbras, penumbras, syzygies and whatnot into the Constitution.

IF THE FOUNDERS WANTED TO ENUMERATE A RIGHT TO EXPRESSION, THEN WHY DIDN'T THEY SAY SO? The word "expression" existed back then - it's not some newfangled word that came along just a century or so ago. If they wanted to protect expressions other than speech, press, and religion, don't you think they would have done so in plain language that normal people understand?

If you can find a tome of that day in which "speech" is used as a legal term referring to expression in general, then cough up a citation.

Did the Founders' contemporaries ever declare that the arts were Constitutionally protected?

How are we supposed to trust the legal system if we're told that the words in front of our eyes aren't really there? The Free Speech clause protects what everybody in the late 18th century identified as speech.

In response to someone claiming that video games aren't "speech", I said: Video games are no different than books, movies, television, or paintings.

To which, flenser replied:

Obviously they are different from those other things, as shown by the fact that they have different names. I suggest you try telling your child that vide games and books are no different, so hey, why not put down the Wii and read a book?

Gratuitous and irrelevant. The point was that that video games are as much art as the other mediums. But he continued,

What you perhaps intended to say is that the content of video games is no different from that in books, movies, television, or paintings. But that is patently untrue.

Patently untrue? How so, oh video game sage? Please remember that we're dealing with the entire set of things considered video games here, not just pong. As you didn't step up to defend yourself when challenged later in the thread, I'll assume you realized you didn't know what you were talking about and posted the "patently untrue" comment in a fits of fevered typing.

The narrative story-telling in some contemporary games can be staggering.

IF THE FOUNDERS WANTED TO ENUMERATE A RIGHT TO EXPRESSION, THEN WHY DIDN'T THEY SAY SO?

Video games are adequately covered by the rights of free speech and freedom of the press. Words, images, speech, and music were all understood by the founders to fall into those two categories.

There is no need to invoke "freedom of expression". Under freedom of the press if I want to publish images of graphic violence I have the right to do so, and you cannot stop me. The argument that you DO have the right to stop me if those images are presented on a screen instead of on paper doesn't pass the laugh test.

On another note, maybe I'm too hasty to pooh-pooh the "freedom of expression" hustle. That may be a way to reverse the ban on 100-watt light bulbs, at least a handful of days out of the year. It might be a stretch to convince a court that a light bulb purchase is expression - but if the date of purchase is Earth Day, or the day of the annual Earth Hour - you better believe that's expression!